State v. Grailhe

1 La. Ann. 183

Opinions

The judgment of a majority of the court was pronounced by

Eustis, C. J.

*

Although it will be difficult to find in the opinion of the court in the case of A. Grailhe, appellant, v. John Hown, the least pretext for the act which is the subject of this prosecution, yet, in order that the wantonness of the attack upon the court may be properly appreciated, we will proceed to read it. [The chief justice here read the opinion referred to, which will be found in the report of the case of Grailhe v. Hown, ante p. 140.]

It will be perceived, that the difference between the price of the wall in 1838 and 1844 was the prominent subject matter in dispute between the parties, the defendant being willing to pay for the value of the wall at the time he first used it in 1844, and the plaintiff insisting on recovering its cost in 1838. There was also a dispute about a trifling sum of interest, which, if the court below had allowed it, would have been less than eight dollars at the date when the appeal was taken. In the petition was also a demand for the additional sum of three hundred dollars damages, which the plaintiff alleged he had sustained by the illegal taking possession, and unlawful enjoyment, of his property by the defendant.

The day before yesterday a printed pamphlet was filed, and a copy was directed to each of the judges, containing a tissue of invective against the court, and particularly against the judge who had been its organ in delivering the opinion. The principal ground of complaint, we should conclude to be, that this court had determined that the .plaintiff’s claim for the price of the wall in 1838 was contrary to equity. A reference to one or two facts in the course of the trial of the cause in the court below, affords some light with regard to the plaintiff’s idea of equity.

This plaintiff forced his adversary to trial in the absence of his material witness, strictly on technical grounds, as will be seen from the following extracts from the record:

Answer of E. A. Canon, counsel for John Hown, filed 28th October, 1844.

“ To the honorable the first Judicial District Court of the State of Louisiana, tlie answer of John Sown of New Orleans, to the petition filed against him in this honorable court by A. Grailhe, Esq. of New Orleans: This respondent denies being indebted unto said plaintiff in the sum by him claimed in the petition; but that he thinks the value of that part of the wall by him used lately is eleven dollars for a thousand bricks, according to a previous agreement he had made with petitioner, which is also the value the said wall had at the time petitioner used the same, making two hundred and four dollars and twenty-one cents. That he owes nothing further to said petitioner; that he has made to said petitioner a tender of said price; and prays, on the payment of said sum, to be discharged from any further liability in this case, and as in duty bound, &c.

(Signed) E. A. Canon, of counsel.”

Affidavit for continuance, filed 26th March, 1845, in the District Court.

“When the case was called before the court, John Hown, the defendant, moved for a continuance, and in order to obtain it made the following affidavit :

uJohn Hown, the defendant in this case, and of New Orleans, being duly sworn, declares and says, that Auguste Otto, a resident for many years of New Orleans, is a witness material in this case. Affiant was informed the day before yesterday that Auguste Otto had left this city to go to Cincinnati. Affiant did not know that said Auguste Otto intended to depart, and could not prevent his departure. He further states that the testimony of said Otto is material to his defence, and that this affidavit and demand for continuance are not made for delay, but to obtain justice; he further swears that by the testimony of said Auguste Otto he expects to prove that, on the 22d day of January, 1844, he went with said Otto to pay Mr. Grailhe for the wall he had used, and that Mr. Grailhe told him he would not charge more for the other parts of the wall to be used by affiant than eleven dollars for a thousand bricks, he said affiant having expressed an intention to build on the same lot.

(Signed) John Hown.

“Sworn and subscribed to. in open court, 26th March, 1845.

(Signed) F. Gilmore, Deputy Clerk.”

“ Defendant’s bill of exceptions, filed 26th March, 1845. District Court. When this case came to be tried before the court, on the 26th day of March, 1845, defendant having presented to the court the affidavit annexed to this bill of exceptions and filed, moved for a continuance on the grounds detailed in said affidavit; but the plaintiff opposed said continuance on the grounds that said Auguste Otto was never legally summoned, because of the direction of defendant’s counsel to leave the subpoenas at defendant’s domicil. The court supported the objection and ordered the case to proceed. To this decision of the court defendant respectfully prays to have leave to except, and have this his bill of exceptions signed.

“ By the court: This case appears from the records in this court to have been fixed for trial three times previously, to wit: on the 18th December, 15th January. and 5th of February last. On each of these occasions, as well as on the present fixing for trial, the defendant’s counsel handed to the clerk a list of his witnesses (including the witness above named), with written directions that the summonses should be served by leaving them at the house of defendant.

(Signed) A. M. Buchanan, Judge.”

Testimony of James Kathman, taken in open court, 26th March, 1845:

“ James Kathman, witness for defendant, sworn: Has known Auguste Otto, the person cited as a witness in this case, for the last eight years. A few days ago witness was informed that he had left the city with his family: his (Otto’s) friends, who'told witness this, said that it was Otto’s intention, after leaving his family up the river, either at Cincinnati or St. Louis, to return to this city. Some of his friends said he had gone to Cincinnati, others to St. Louis. Witness has been at court every time this case was for trial, and saw1 Mr. Otto in court as a witness in the case. Otto was disposed to be a witness in the case. At the time Hown built the house and took possession of the wall in question, witness was building himself, and the price of bricks at the time was eleven dollars per thousand placed on the wall, and this is the price he paid.

“ Cross examined : It was not witness who informed defendant that Otto was gone; does not know where Otto is at the present time.”

“ Thomas Norris, witness for defendant, sworn: Was present when a person from Mr. Grailhe presented a bill for $15 the thousand to defendant. Defendant said he had agreed with plaintiff, in presence of Otto, for less, to wit, $11, and that he was willing to pay what was reasonable; this person again brought another bill for $18 the thousand, and again another for $19; and, at the time he presented the last, said that if defendant did not pay it he would sue him next day for the wall, at the rate of $20 the thousand of bricks.”

“ Captain Shepherd, witness for defendant, sworn: That on behalf of defendant he called on Mr. Grailhe to pay him at the same rate for the wall in question, that defendant had paid him for the other wall, to wit, the wall on New Levée street. Mr. Grailhe refused to accept it; this was in September last. Mr. Grailhe said he 'was entitled to the half of the costs, and showed him an article of the Code. Mr. Grailhe said that it would be taking money out of defendant’s pocket to defend the suit, and that no honorable lawyer would defend it. Witness said he thought the article read by Mr. Grailhe vague; Mr. Grailhe said it was positive.

“ Cross examined: Witness did not tender the money; he had not the money in his pocket; but he was authorized by defendant to- pay it.”

Let it be borne in mind that this testimony of the witness is uncontradicted.

The illegality of the tender made by the defendant of the sum which he thought due and was willing to pay, and which was decreed to be due by this court and the court below, was also properly maintained, but on grounds also technical, and the defendant was thereby amerced in costs.

Thus we see this cause was conducted by the plaintiff according to the strict rules of law. Without reference to any of those matters, we came to the conclusion that the articles of the Civil Code only entitled the party plaintiff to recover the value of the wall at the time the defendant first made use of it, and not its original cost. The opinion of the court was prepared with care and deliberation, and on a re-examination of it there is not a word in it which any member of the court would change.

It was for protecting this humble defendant from the equity of the plaintiff, that this outrage has .been directed against us.

If we find a claim authorized by no positive law, but repugnant to equity, are we not bound by the supreme law of the land to say so, and to give it as a reason for our decision 1 The 79th art. of the 4th title of the constitution of 1845, declares, “that judges of all courts within this State shall, as often as it may be possible so to do, in every definitive judgment, refer to the particular law in virtue of which such judgment may be rendered, and in all cases adduce the reasons on which their judgment is founded.”

The praise, or censure of a litigant, under circumstances in which this party has placed himself, is equally a matter of indifference to us; but in order to place him before the court in his proper light, let us refer to his printed argument before the decision of the cause. In this argument he says:

“ This state of things, very prejudicial to public interest, increases the already very high duties and responsibilities of this honorable court. But the friends of justice and of good principles, rely with unbounded confidence on the honor, the zeal, and the eminent abilities of its distinguished members.

“A word on the equity of the appellant’s case. The right of the plaintiff is based upon two articles of our Code, whose spirit and object are as transparent as sun-light. During the last thirty years (1808) the largest portion of our city has been raised under this system, and no difficulty ever sprang among so many persons interested in that grand work. The plaintiff has suffered his property to be taken from him, about two years ago, by the defendant, who has had the enjoyment of it ever since, without right, without paying the just indemnity fixed by the law. Is this equity? A prompt decision is most respectfully prayed for.”

To what a situation would the administration of justice be reduced, were its officers in the last resort to be thus exposed to the indecorous animadversions of disappointed litigants, whose interests, in the furtherance of justice, have been crossed, and whose purposes have been defeated by the judgment of courts ?

Could we attribute this petition to the mere excitement resulting from disappointment, so far as we are personally concerned, we should be disposed to pass it over, without any other notice than striking it from the records of the court, and returning it to the source whence it originated. But the party well knows that an act of this kind, premeditated and deliberate, can only be met in one way by this court, and that is by the punishment of its author. We are bound to administer the law, without fear, favor or affection. Those who come before us are equal in the eye of the law, and our concern is not with persons, but with things. That in deciding various cases, often involving new and difficult subjects, we should fall into errors, is not at all surprising; but an opportunity is always afforded to correct them on a revision of the case. We know the privileges of the bar, and on all occasions respect them. We rely upon its assistance in the investigation of the difficult questions that come before us, and we place no restriction on, but invite the severest scrutiny of all our decisions, for the correction of the errors we may fall into is as much our duty as it is theirs. We desire the examination to be free, and we know how to make allowance for the zeal with which an independent advocate may maintain the cause which he believes to bo just. But when a party chooses to plead his own cause, and makes use of his position to attempt to bring the administration of justice into contempt, by a gross breach of decorum in calumniating and misrepresenting our motives, we have but one course to pursue, and that is to punish the offender.

In the case of The State v. Richard Raynal Keen, 11 La. 600, the late Supreme Court held that, attorneys and counsellors, in the management of them own cases, stand on the same footing as other citizens, and cannot claim the indulgence which the law grants to those, who, in defending the rights of others, are carried away by an intemperate zeal beyond the bounds of moderation.

The offence in this case was committed, on an application for a rehearing in his own case. Keen was an attorney, but was punished for the contempt under article 131 of the Code of Practice, which provides that, “the judges of the Supreme, District, and Parish courts have the power to punish all contempts of their authority, by fine not exceeding fifty dollars, and imprisonment not ex ceeding ten days, for each offence of that kind.”

In the judgment we are about to pronounce a majority of the judges concur. It is therefore ordered that the defendant, Alexander GrailJie, pay a fine of fifty dollars, and the costs of the prosecution; and that he be imprisoned during forty-eight hours, and until said fine and costs be paid.

Rost, J. recused himself, and did not sit on the trial of this rale.